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RULING
ANSAH JSC.
This is an application by the
Ghana Medical Association for
judicial review of the decision
of the High Court, Accra,
presided over by His Lordship
Mr. Justice Dzakpasu, to prevent
him from proceeding with the
ruling on the interlocutory
injunction and the substantive
matter pending before it
intituled: ‘Chris Archman-Akumey
v Ghana Medical Association &
others’. In other words, the
application is seeking an order
to prohibit the aforementioned
judge from ruling on an
application for an order of
interim injunction and hearing
the substantive matter in the
suit before him.
The affidavit stating the facts
and background of the
application:
The facts grounding the
application are contained in the
supporting affidavit filed on
8-12-2011. In it, the applicant
deposed that on 24 October 2011,
the plaintiff, respondent
herein, issued a writ of summons
and statement of claim against
the Ghana Medical Association
(hereinafter called the
applicant), for certain reliefs
and followed it with an
application for interlocutory
injunction restraining the
applicant from embarking on a
strike of any kind. On 1st
November 2011, the judge stated
in court he would like to
determine the matter on its
merits.
Subsequently, the chronology of
events was that on 8th
November, 2011, the applicants
filed an affidavit in opposition
to the application for interim
injunction rather belatedly,
whereupon the plaintiff
respondent filed a supplementary
affidavit in response thereto.
Then the applicant filed a
statement of defence in which it
raised a preliminary objection
to the application for
injunction and also challenged
the capacity of the plaintiff
respondent to invoke the
jurisdiction of the High Court
in the matter.
The court heard both counsel for
the parties argue for and in
opposition to the legal
objection thus raised. After
arguments from counsel the judge
was alleged to have stated that
‘if he ruled in the
plaintiff/respondent’s favor in
the preliminary matter, he would
go ahead immediately and rule on
the interlocutory injunction
application.’ He then adjourned
proceedings to 9th
December 2011 for his ruling.
The applicant deposed further in
his affidavit, he construed the
plaintiff’s substantive claim
before the court to be that it
was to enforce an alleged breach
of human rights; he recited the
procedure for invoking the
jurisdiction of the High Court
under the Human rights
provisions in the constitution,
1992, in the affidavit in
support of application for the
injunction. The applicant took
the view that by issuing a writ
of summons supported with a
statement of claim purporting to
invoke such jurisdiction, the
plaintiff respondent invoked the
jurisdiction of the High Court
wrongly. The Judge compounded
the error by entertaining it.
What he did was not only wrong,
but was also contrary to law.
Furthermore, when the judge said
he would rule on the
interlocutory injunction when
the capacity of the plaintiff
had not been investigated and
established, he evinced an
inclination of bias.
The deposition in the ultimate
paragraph 21 of the affidavit
encapsulated the crux of the
affidavit in support and
therefore bears quotation in
extenso. It was that:
“21. That the applicants pray
that in the interest of justice,
smooth, orderly and proper
administration of justice, that
this Honorable Court prohibits
the learned High Court Judge,
Mr. Justice Dzakpasu from
continuing hearing the matter
for the fact that the High
Court’s jurisdiction has not
been properly invoked by the
Respondent and further that by
making such statements in open
court, the learned judge has
exhibited an open bias against
the applicants.”
Grounds on which relief is
sought:
Aggrieved by the above mentioned
events, the applicant issued the
writ to invoke the supervisory
jurisdiction of this court and
stated the grounds for the
application to be as follow:
“(a). Since the High Court’s
jurisdiction in Human Right
matter can be properly be
invoked by an application in the
form of a Motion supported by an
affidavit copies of which ought
to be served on the Attorney
General, stating the full name
and address of the applicant,
the facts upon which he relies,
the relief and remedy sought and
the grounds for seeking the
remedy and since the Respondent
in this application purported to
enforce an alleged breach of
human rights by a writ, the High
Court’s jurisdiction has not
been legally and procedurally
been (sic) invoked to enable the
learned High Court judge hear
and rule on the interlocutory
and substantive Claim.
(b). Since Labor disputes occur
between the employer and the
employee and since in matters
relating to Labor disputes
affecting the Essential Services
the law mandates the National
Labor Commission to deal with
the dispute with power to invoke
the jurisdiction of the High
Court to compel a party to a
Labor dispute to comply with its
direction or order, the
Respondent in this case not
being the National Labor
Commission, or acting under the
Commission’s authority, could
not legally invoke the
jurisdiction of the High Court
to deal with the labor dispute
involving the applicant and its
employers and by issuing a writ
to that effect at the High Court
has wrongly invoked the Courts
jurisdiction.
(c). The Learned Judge’s
statements on 1st of
November 2011 that he would want
to deal with the matter on its
merits and on 15th
November 2011, immediately after
the arguments for the
preliminary objection had been
heard that he would rule on the
interlocutory injunction if he
concluded that the Respondent
had capacity, evince an
inclination of bias and
therefore disqualified him from
continuing to hear this case.”
Statement of case by the
applicants:
After stating the background
facts and grounds for the
application, the applicant
submitted in his statement of
case filed in support of his
case, that the judge had
predetermined the substantive
matter and so the applicant
would not receive a fair hearing
at the trial or come out with an
unbiased decision at the end if
he was allowed to continue with
the matter; the submissions on
this point, as per the statement
of case filed on behalf of the
applicant, was that:
“16. The applicants contend that
the pronouncements by the
learned judge only evince an
indication that the matter has
been predetermined and would not
receive a fair, unbiased
decision during the trial if the
learned trial judge is allowed
to continue with the matter.”
Defendant’s/Interested party’s
affidavit in opposition to the
application:
As was to be expected, the
interested party opposed the
application. The grounds
therefore are summarized in
several paragraphs of the
affidavit in opposition and I
most respectfully quote only
some of the salient ones
verbatim. They are:
“2 That this application is
premature since the trial court
has not given any ruling on my
application for injunction, or
on the preliminary objection
raised by the applicants.
6 That since the ruling has not
been given, there is no way the
Applicant can show the ruling
was in my favor or what the
decision would be.
8. That this application is
therefore brought mala fides
and is an attempt to avoid a
ruling in an application
sponsored by Applicants
themselves.
9 That ground (a) of the present
motion is untenable since
Applicants seek to determine how
the interested party must
present his case and in any case
is misconceived because even if
the Plaintiff/respondent
/interested party’s case was
purely a human rights matter,
the proper initiation was by a
writ and Statement of claim.
10 That order 2 rule 2 of the
High Court (Civil Procedure)
Rules, 2004, CI 47, requires all
Civil Proceedings shall be
commenced by Writ of Summons,
which is what Respondent did.
17 That my Writ in the High
Court does not seek to determine
the labor dispute between the
Fair Wages and Salaries
Commission and Applicants as to
the proper level the Applicants
must be placed on the Single
Spine Salary Structure to
warrant Applicants demand that
only the Labor Commission can
initiate an action based on the
Labor Act, Act 651.
18. That the position of
applicants is not even supported
by law or practice since this
Honorable Court has dealt with
action instituted by parties who
are not the National Labor
Commission, and since the Labor
Court, Past Trade Division has
severally dealt with actions not
instituted by the National Labor
Commission but by other
individuals and companies.
20. That again I have not sought
to “…… deal with the Labor
dispute ….”, but to rely on an
event which is clearly against
statute which has no bearing on
the Labor dispute but which is
tangential to the Labor dispute
since going on strike is not an
ingredient of the dispute, which
is about Pay or Salary levels,
but rather is an external tool
wrongly employed as a coercive
adjunct to the real issues in
controversy between Applicants,
(and) the Fair Wages Commission.
21. That therefore paragraphs 13
and 14 of the Affidavit in
Support are erroneous to the
extent that the proper person to
enforce the provision of the
Labor Act 2003, (Act 651), is
only and solely the National
Labor Commission or that the
National Labor Commission (the
NLC) has made any orders or
directives before or at the time
of instituting the action in the
Court a quo.
22 That NOWHERE in Act 651 has
EXCLUSIVITY been given the NLC
regarding actions based on Act
651 to argue to the contrary
presumes that this Honorable
court was wrong in deciding
several appeals brought by
individuals and organizations
other than the NLC concerning
the provisions of Act 651.
25 That paragraphs 18 and 19 of
the supporting affidavit seek to
determine how I should initiate
my action and that declarations
cannot be procured by Motion and
that even though I have cited
some Article 12 and 21 right,
other clauses in the 1992
constitution have been cited, as
well as statute so I elected not
to sue under Article 33
simpliciter, and Order 67 of the
High Court (Civil Procedure)
Rules 2004, CI 47, but order 2
of CI 47.
26 That paragraph 20 is
misconceived as the grounds for
imputing bias on the part of the
Trial Court are untenable
because a statement that a
decision on the preliminary
objection will precede a
decision on the motion for
injunction in tandem is the
common sense, speedy and
appropriate manner to dispose of
the applications before the
trial court.
29 That applicant’s paragraph 21
of the supporting affidavit is
utterly untenable because bias
is a wall (sic) area of law
replete with precedents and
authorities on its ingredients
and constituents and I humbly
believe the present grounds
based on the award of costs and
a single statement as to how the
Court would deliver its yet
undelivered rulings do not
qualify as sufficient to ground
this application.
31. That paragraph 14 of the
applicant’s statement of case
and ground ‘c’ of the
present motion are incorrect as
the trial judge never said he
would rule on the matter if he
concluded the plaintiff had
capacity which statement is even
logical but said he would rule
on the injunction after he had
given his ruling on the
objection.”
In the concluding paragraphs of
his affidavit in opposition, the
respondent deposed that the
authorities cited by the
applicant did not support his
case, the application was
misconceived, untenable,
misdirected and geared only
towards having the case
transferred from the judge by
employing the wrong method.
Finally, he prayed that the
application be dismissed.
In view of the opposition
mounted by the respondent to the
application summarized above, I
will consider the law on the
issues raised by the submissions
in the respective statement of
cases by the parties herein and
test each ground proferred for
the application with it.
Towards this end I need remind
myself that this court ought to
stand by its earlier statement
in Republic v Court of
Appeal; ex parte Tsatsu Tsikata
[2005-2006] SCGLR 612 that:
“The clear thinking of this
court is that, our supervisory
jurisdiction under article 132
of the 1992 constitution, should
be exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so plain
as to make the impugned decision
a complete nullity. It stands to
reason then that the error(s) of
law as alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the matter.
A minor, trifling,
inconsequential or unimportant
error which does not go to the
core or root of the decision
complained of; or, stated
differently, on which the
decision does not turn would not
attract the courts supervisory
jurisdiction.” Per Georgina Wood
JSC (as she then was, at page
619 of the report).
Where an applicant invokes the
supervisory jurisdiction of this
court for the judicial review of
a decision of the High Court to
proceed with a ruling on a
motion and the substantive
matter pending before it, he
seeks to prevent the judge from
further hearing the suit: that
is to say, he seeks a
prohibiting order or an order to
a lower court not to carry out
an ‘ultra vires’ act by
which is meant hearing a case
outside its jurisdiction; in
other words, an order of
prohibition issues to prevent a
court or tribunal from exceeding
or continuing to exceed its
jurisdiction or infringing the
rules of natural justice. Thus,
the grounds upon which this
court proceeds to grant
application of this nature,
following the authorities are:
1. want or excesses of
jurisdiction;
2. where there is an
error of law on the face of the
record;
3. failure to comply with
the rules of natural justice;
and
4. the Wednesbury
principle.
It goes without saying that the
instant application was grounded
on the first two of the above
grounds, namely, ‘want of or
excesses of jurisdiction’ and
secondly, ‘error of law on the
face of the record’; these may
be examined in detail below to
see how far the applicant
succeeded in this application.
There is a plethora of
authorities specifying the scope
and grounds upon which the
discretionary order of
prohibition would be granted by
our courts. Amongst them are
Republic v High Court, Accra; Ex
parte Commission on Human Rights
and Administrative Justice (Addo
Interested Party) [2003-2004]
SCGLR 312; In ex parte
CHRAJ (supra), this court
speaking through the legal
luminary, Dr. Date-Bah JSC,
re-stated the law governing the
exercise of judicial review as
appeared in holdings 4 and 5 at
pages 316-317 of the report
which I respectfully reproduce
hereunder, that:
“….Where the High Court (or for
that matter the Court of Appeal)
has made a non-jurisdictional
error of law, which was not
patent on the face of the
record, (and by the ‘record’ was
meant the document which
initiated the proceedings, if
any, and the adjudication but
not the evidence nor the reasons
unless the tribunal chose to
incorporate them), the avenue
for open to an aggrieved party
was an appeal, not judicial
review. Therefore certiorari (or
prohibition) would not lie to
quash errors of law which were
not patent on the face of the
record and which had been made
by a superior court judge who
was properly seised of the
matter before him or her. In
that regard, an error of law
made by the High Court or the
Court of Appeal, would not be
regarded as taking the judge
outside the courts jurisdiction,
unless, the court had acted
ultra vires the Constitution
or an express statutory
restriction validly imposed on
it. Anisminic Ltd v Foreign
Compensation Commission
[1969] AC 147 at 171; not
followed; Dictum of Sowah JA,
(as he then was) in Republic
v Accra Special Circuit Court;
Ex parte Akosah [1978] 2 GLR 212
at 215, CA approved…..
5 Prohibition would lie to
prevent a court from exercising
its jurisdiction or reaching a
decision which could be quashed
subsequently by certiorari…”
In Republic v High Court,
Accra; Ex parte
Industrialization Fund for
Developing Countries and another
[2003-2004] SCGLR 348, this
court held that certiorari (or
prohibition) was a discretionary
remedy which would issue to
correct a clear error of law on
the face of the ruling of the
court. In the case of an error
not apparent on the face of the
record, the avenue for redress
is by way of an appeal.
Bamford-Addo JSC held in that
case that when the High Court, a
Superior Court, is acting
within its jurisdiction, its
erroneous decision is normally
corrected on appeal whether the
error is one of fact or law. She
noted the distinction between
certiorari (prohibition
included) and appeal, which was
often lost on litigants and
their counsel and further that
certiorari is a discretionary
remedy which would issue to
correct a clear error of law on
the face of the ruling of the
court; or an error which amounts
to a lack of jurisdiction in the
court so as to make its decision
a nullity.
As is well known, the difference
between certiorari and
prohibition is only that whereas
certiorari looks to remedy past
errors, prohibition looks to the
future to prevent what will be
done from being done.
What goes on for the former
equally applies to the latter.
The authorities make it also
clear that it is not just any
error that has the effect of
ousting a court of jurisdiction,
but that for an error to have
any such effect it ought to be
basic and fundamental.
In Re Appenteng (Decd);
Republic v High Court, Accra; Ex
parte Appenteng and
another [2005-2006] SCGLR 18,
was a case where two of the
three executors named in a will
applied for an order of
prohibition against the
continued exercise of
jurisdiction by a High Court
judge, Accra, in respect of an
aspect of the administration of
the estate of the deceased
testator; this court held that
the rules on the scope of the
order of prohibition are that:
(a)
prohibition is not meant to
prevent a person or a court from
exercising general judicial
functions; (b) it is rather to
challenge an attempted exercise
of the judicial function in
specific jurisdictional
situations, ie, for excess or
absence of jurisdiction or
departure from the rules of
natural justice such as the
existence of actual bias or
strong likelihood of bias or
interest; and (c) an applicant
for prohibition or certiorari is
not restricted by notion of
locus standi, ie he does not
have to show that some legal
right of his is at stake……”
In ex parte Appenteng (supra),
the late Prof Ocran JSC upheld
the rules on prohibition and
applied them to the facts of the
case, in particular that the
High Court has jurisdiction
under the Public Trustees
Ordinance, 1952, to appoint the
Public Trustee to manage the
estate or trust. Also, the basic
jurisdiction to remove executors
and appoint a public trustee
under the 1952 Ordinance lay in
a High Court, so there had been
no usurpation of jurisdiction
that would cause the court to
issue a prohibition against the
suit before the judge or court.
The application for prohibition
therefore failed.
Bias, actual or a real
likelihood thereof, is a good
ground for the grant of
prohibition against a judge. In
this case, the interested party
denied the imputation of bias
because what the trial judge did
was in consonance with the
common-sensical, speedy and
appropriate manner to dispose of
the application before the court
and that at any rate, the court
did not say what the applicant
alleged he did.
Where is the evidence on what
the court said in this case?
That was oral and was not
contained in a written decision,
ruling or order. However, the
law is settled that an oral
decision is amenable to judicial
review, provided there was an
error of principle in it: see
Republic v Akim Abuakwa
Traditional Council; ex parte
Sakyiraa II [1977] 2 GLR 115 at
126-127.
The basic issue in this case is
whether or not the applicant is
entitled to the order sought
from this court? The subsidiary
issue upon whose success or
otherwise this issue depends is:
was there proof of bias alleged
against the learned judge; did
the court lack or exceed its
jurisdiction to hear the
matter?
In Republic v High Court,
Kumasi; ex parte Mobil Oil,
(Ghana) Ltd, (Hagan
interested party), [2005-06]
SCGLR 312, the conditions
for the grant of prohibition on
grounds of real likelihood of
bias was considered in great
detail by this court.
The condensed facts of that
case were that in the course of
hearing the suit before him, the
judge ignored a breach of
agreement between the parties
and ordered the applicant to
continue to supply products to
the Pine Avenue Service Station.
He was further alleged to have
showed a clear inclination to
support the interested party to
the application, and also to
have pre-determined the
declaration which the plaintiff
to the action had sought on his
writ of summons for an order of
interim injunction. This court
said that even though the
comments might seem to have been
obiter, they were rash and
amounted to breaches of the
rules of natural justice. Under
those circumstances, this court
was of the view that it would be
impossible for the judge to
bring a completely impartial
mind to bear upon the trial of
the substantive matter. This
court clinched the deal when it
said:
“The authorities are clear. The
common law disqualifies a judge,
magistrate or an independent
administrator from adjudicating
whenever circumstances point to
a real likelihood of bias, by
which is meant ‘an operative
prejudice whether conscious or
unconscious’ in relation to a
party or an issue before him.
This applies in particular,
where the circumstances point to
a situation where a decision may
be affected by pre-conceived
views”;
see the opinion by Dr Twum JSC
at page 327 of the report.
In Attorney –General v Sallah
2 G and G, 487, the Court of
Appeal then sitting as the
Supreme Court, said at page 488
of the report that:
“What then is the law on
disqualification on the ground
of bias? We think that bias in a
judge disqualifies him from
adjudicating upon a case. And in
this regard the law recognizes
not only actual bias as a
disqualifying factor but a
likelihood of bias as well. The
objection in this case is not
based on actual bias and indeed
the learned Attorney-General was
at pains to point out that
nobody has said that the judges
involved were in fact biased.
His case is that from the facts
before the court, it ought to
hold that there is a likelihood
of bias. In determining the
question of bias, the courts
have held that pecuniary or
proprietary interest, however
small in the subject matter of
the dispute, disqualifies a
judge.”
We do not have any such
allegation in this case. The
quotation continues at page 489
that:
“Interest, other than interest
of a direct pecuniary or
proprietary nature which gives
rise to a real likelihood of
bias, will disqualify a judge.”
Much earlier, the Court of
Appeal had held in Amponsah v
Minister of Defence [1960] GLR
140 at 141, where Korsah
CJ said that:
“To justify an allegation of
interest or bias against a
judicial officer, it must be
established that he in fact has
some interest in the
subject-matter, or has such
foreknowledge of the facts as to
make it impossible for him to
adjudicate upon the matter with
an independent mind and without
any inclination or bias toward
one side or other in the
dispute.”
It becomes reasonable to hold
then that, apart from direct
pecuniary or proprietary
interest where bias will be
presumed to disqualify a judge,
a likelihood of bias is enough
to have the same effect. Where a
judge makes prejudicial
statements in the course of
hearing a case, he opens himself
to allegations of a real
likelihood of bias, which will
disqualify him from continuing
sitting on the particular case.
The reason is that if by his
prejudicial statements he had
predetermined all issues at
stake, what is left for him to
decide for which reason he
should continue the hearing?
The categories of grounds for
making such allegations are
neither closed nor exhausted.
Each case will depend upon its
own peculiar facts.
In his statement of case filed
in support of the application,
the applicant submitted that the
judge showed by his
pronouncements that the matter
had been predetermined and so
the applicant would not receive
a fair hearing during the trial
or come out with an unbiased
decision at the end if he was
allowed to continue with the
matter; the submissions on this
point were predicated on the
submissions in the statement of
case that:
“16. The applicants contend that
the pronouncements by the
learned judge only evince an
indication that the matter has
been predetermined and would not
receive a fair unbiased decision
during the trial if the learned
trial judge is allowed to
continue with the matter.”
The applicant left no doubt that
this was the basis of his
application to invoke the
supervisory jurisdiction of this
court specifically to prohibit
the judge from proceeding
further in the case. It was upon
this basis that the applicant
invites this court to say the
High Court in this case lacked
jurisdiction to hear the matter
before it so he ought to be
prohibited from continuing to
sit on it.
The applicant herein expatiated
more on this when he deposed
further in paragraph 17 of his
supporting affidavit, filed on
8-12-2011, that:
“17. That His Lordship Dzakpasu
adjourned the matter to 9th
December 2011 for ruling but
before the adjournment also
stated in open court that if he
ruled in the
Plaintiff/Respondent’s favor in
the preliminary matter, he would
go ahead immediately and rule on
the interlocutory Injunction
Application.”
That same day when the applicant
filed his statement of case, he
added more to this when he
submitted in writing that:
“14 After the legal arguments in
support of the legality to
invoke the jurisdiction of the
High Court and the fact that the
matter had become moot, the
learned judge stated in open
court that he would rule on the
injunction application
immediately if, he
concluded that the Plaintiff had
capacity and hence the court had
jurisdiction to hear the
matter.”
The interested party wholly
disagrees with this submission;
he deposed that the judge never
said he would go ahead
immediately and rule on the
interlocutory injunction, but
rather that he would rule on the
injunction after he had given
his ruling on the preliminary
objection. To the interested
party that was the right and
normal thing to do since the
motion for injunction could not
be left hanging.
One thing that stands out
clearly from the respective
submissions on this point was
that the judge did not make any
positive statement that he had
ruled in favor of or against the
preliminary objection. He did
not say whether the
plaintiff/interested party had
the capacity to mount the action
or not. He was non-committal and
only expressed what he would do
- in the event of a certain
situation. Implied in what he
was alleged to have said was
that if the judge did not rule
in favor of the preliminary
objection, then, he would have
no need to continue with the
hearing as in that eventuality,
the plaintiff did not have
capacity to mount the action; he
would still have to rule on the
interlocutory injunction
application for the
interlocutory injunction. What
then was he alleged to have said
or decided? Nothing express or
positive; at its highest the
judge only expressed what he
would do if a condition
was fulfilled; that was a far
cry from what the trial judge in
the Ex Parte Mobil Oil
Ghana Limited (supra) did.
Perhaps the applicant should
have waited for the judge to
commit himself – to see if he
would say anything that could
be used against him. The
applicant did not – or waited in
vain. What he had from the judge
was not enough to provide the
fulcrum from which to launch an
attack for bias against the
judge; in effect then the
applicant failed in my opinion
to make a case of a real
likelihood of bias against the
judge for which he should be
prohibited from continuing
sitting on the case because he
thereby vitiated or lost the
jurisdiction he initially had to
hear and determine the matter
before him.
It was appropriate for judges or
arbitrators to be taken on for
words they utter expressly in
court or in their decisions,
more than impressions taken of
what they did say.
It must be stated plainly that
it is not unusual for a court to
state a chronological order of
what it would do at a point to
be followed by another in the
course of proceedings; if that
was done it might well be a case
management style more than
predetermining issues in the
proceedings.
The imputation or inference of a
likelihood of bias in the
circumstances did not avail the
applicant; there was no proof of
a real likelihood of bias made
against the trial judge in this
case;
In the result, ground ‘c’
of the grounds for the reliefs
sought fails and is dismissed.
What about ground ‘a’
quoted above? The substance
of that ground was to fault the
plaintiff/respondent on his
choice of the form to commence
proceedings in this matter. The
applicant submitted that in so
far as the plaintiff’s action
was in fact and in truth a human
rights action, he should have
commenced the proceedings by a
motion and not a writ of summons
and a statement of claim as he
did. By resorting to the writ of
summons procedure in this
matter, the plaintiff erred
egregiously; the High Court
compounded the error by
entertaining the action.
Order 2 rule 2 of the High Court
Civil Procedure Rules 2004 CI 47
states that:
“subject to any existing
enactment to the contrary, all
Civil Proceedings shall be
commenced by the filling of a
writ of summons.”
Counsel for the respondent
submitted to the contrary that
Order 67 of CI 47 prescribed the
procedure under Article 33 of
the Constitution, 1992, when it
provided that:
“1. Application for redress
under article 33 of the
Constitution
A person who seeks redress in
respect of the enforcement of
any fundamental Human Rights in
relation to the person under
Art. 33(1) of the Constitution,
shall submit an application to
the High Court.
2 Mode of submission of
application
(1) The application shall be
made to the court by motion
supported by an affidavit signed
by the applicant’s lawyer and
shall contain the following
particulars:
(a) the full name and
address for service of the
applicant and the lawyer of the
applicant;
(b) the facts upon which
the applicant relies;
(c) the relief or remedy
sought by the applicant and the
grounds on which the applicant
seeks the relief or remedy; and
(d) the full name and
address for service of any
person directly affected by the
application.
(2) A copy of the application
shall be served on the
Attorney-General and such other
persons as the Court may
direct.”
The above rules in CI 47 state
categorically that the
enforcement of the fundamental
human rights under Article 33 of
the constitution is by way of a
motion supported by an affidavit
whose contents are also provided
for under the rules. The order
does not mention a writ at all
in connection herewith, and
therefore according to the
submissions, the applicant may
appear to have misconceived the
point when he submitted that the
plaintiff/respondent should have
commenced proceedings in the
High Court by a writ of summons
as provided for under Order 2
rule (2) of CI 47.
I do not think it will serve any
good purpose for me to decide
which submission was right or
wrong, i.e whether or not the
writ procedure was more correct
to commence the proceedings in
question. The important
consideration is assuming the
judge erred in not condemning
the procedure adopted in
commencing the proceedings, what
was the effect of such error of
law. The fact was that the High
Court had jurisdiction to hear
and determine the matter before
it, to wit, the labor dispute
between an employer and his
employees. If he erred in
hearing any aspect of this
matter, that did not erode or
eat away its jurisdiction or let
him exceed it.
At any rate, Order 81 of CI 47 A
stated that failure to comply
with the requirements of these
rules in a manner as to form,
manner, place or time shall be
treated as an irregularity and
shall not nullify the
proceedings. Of and concerning
Order 81 of CI 47, Dr. Twum JSC
held in Boakye v Tutuyehene
[2007-2008] SCGLR 970 that
“The new Order 81 has made it
clear that perhaps apart from
lack of jurisdiction in its true
and strict sense, any other
wrong step taken in any legal
suit should not have the effect
of nullifying the judgment or
the proceedings.”
see also Republic v High Court,
Accra; ex parte Allgate Co, Ltd
(Amalgamated Bank Ltd,
interested party) [2007-2008]
SCGLR 1041; Republic v High
Court, Koforidua, ex parte
Ansah-Otu. & another Koans
Building Solutions
Ltd,(interested party) [2009]
SCGLR 141 and the recent cases
named therein.
Equally, if under the labor law
of the land it is only the NLC
that has the mandate to settle
labor disputes but the plaintiff
did not but nevertheless went to
court, it ought to bear in mind
that the court undoubtedly has
jurisdiction to hear labor
disputes under its general
jurisdiction in article 140 of
the constitution to hear all
matters, civil or criminal,
labor disputes not excepted,
under the constitution or the
labor law of the land. Whatever
error it might have committed in
the course of proceedings, fell
well within its jurisdiction and
did not bereave or rob it of it.
Accordingly, grounds ‘a’
and ‘b’ of the relief in
the application did not avail
the applicant and are dismissed.
I have said enough to show that
I do not believe the applicant
proved the existence of any real
likelihood of bias to disqualify
the judge from continuing
hearing the matter.
It becomes clear that the
application did not succeed on
any of the grounds upon which it
was predicated. It is dismissed.
The trial judge is motioned to
proceed to deliver any
outstanding matter and to
continue the hearing of the
matter before him.
(SGD)
J. ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD)
DR. DATE-BAH
JUSTICE
OF THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE
OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE
OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
COUNSEL.
NENE AMEGATCHER (WITH HIM
DOMINIC BRENYA-OTCHERE) FOR THE
APPLICANT.
DAVID ANNAN FOR THE INTERESTED
PARTY. |
